There’s a classic saying that crime doesn’t pay. In fact, victim surcharges ensure that criminals pay for their crimes on top of the sentences they receive. But what exactly is a victim surcharge? How does it work? Does it go too far?

Victim surcharges were first introduced in 1989. The surcharge acts as an additional monetary penalty imposed against a convicted offender at the time of their sentencing. It’s collected by the government, which uses the money to fund programs and services for victims of crime where the crime occurred. As it stands, there are three general victim surcharges that apply to convicted offenders:

  • Where a fine is imposed, the surcharge will be 30% of the fine;
  • For summary convictions, a $100.00 surcharge applies; and
  • For indictable offences, a $200.00 surcharge applies.

Judges also have discretion to impose an increased victim surcharge where they deem that the circumstances call for such an increase.

The power to impose a victim surcharge comes from section 737(1) of the Criminal Code. In 2000, judges were given the discretion to waive the victim surcharge where it would impose undue hardship on the offender or their dependents. Imagine a young, unemployed offender convicted of a drug offence. Under the right circumstances, perhaps waiving the victim surcharge would prevent more harm than good. However, in 2013, the Increasing Offenders’ Accountability for Victims Act was passed. This Act increased the victim surcharges to what is shown above and made the surcharges mandatory.

The change was made by the federal government, led by Prime Minister Stephen Harper, in an effort to ensure that convicted offenders remain accountable for their crimes. However, the general public – and the judiciary – have resisted these mandatory victim surcharges. An article in the Globe and Mail highlights several instances where judges creatively tackled the issue by reducing the base fine an offender faces, or even by allowing them up to 99 years to pay the surcharge. Underlying these efforts are concerns that a mandatory victim surcharge is not always appropriate. Context matters.

In December 2018, the Supreme Court of Canada rendered its decision in R v Boudreault, holding that the mandatory victim surcharge is unconstitutional. Specifically, the court held that the victim surcharge violates section 12 of the Charter of Rights and Freedoms because it subjects some individuals to cruel and unusual punishment. Such a violation could not be saved under section 1 of the Charter. The court noted that many people within the criminal justice system live in poverty, suffer from mental health issues, and face many other disadvantages. The mandatory nature of the victim surcharge can lead to even harsher consequences for offenders who do not have the means to pay.

As it stands, the court declared section 737 to be of no force and effect, which means that judges will not have to impose the mandatory “one size fits all” victim surcharge. It is open to Parliament to pass new legislation that informs us of how the victim surcharges will operate. For now, judges should be able to consider the context of an offender’s circumstances in determining whether a surcharge would be appropriate. After all, the goal of holding offenders accountable for their crimes is one Canada has a legitimate interest in. However, we must balance that goal with the means we use to achieve it.

  • Christopher Lupis (Queen’s Law, class of 2019)